Clemency, pardons: 10 facts to know

The New York Times editorial board on Thursday urged President Barack Obama to show National Security Agency leaker Edward Snowden leniency and work out a deal to bring him home, saying he is a whistleblower, even advocating “some form of clemency”. Here are some facts about the presidential power of pardon and clemency.

1. The presidential pardon power comes from Article II, Section II of the Constitution, which states the president “shall have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment.”

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2. The Justice Department, which handles applications for clemency, has guideline requirements about applying for a presidential pardon, including that you must wait five years after the end of your imprisonment or conviction to apply for a pardon, clemency applications should not be made if there is other judicial relief available and which forms to use. The DOJ notes, though, that the rules are advisory and in no way restrict the constitutional authority of the president to grant pardons.

3. Of course, not all pardons follow the traditional steps: A conviction for a crime isn’t even necessary, as was the case in possibly the most famous presidential pardon. President Gerald Ford pardoned his predecessor, Richard Nixon, for any crimes he may have committed, writing “I, Gerald R. Ford, … do grant a full, free, and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9, 1974.”

4. Obama has granted 61 acts of clemency and pardon since taking office in 2008. His predecessor, George W. Bush, granted 200 over his eight years in office, and Bill Clinton issued more than 450, according to DOJ statistics. Of presidents who served longer than a year in office, George Washington only issued 16 pardons, and Franklin D. Roosevelt issued the most over his four terms, at 3,687, according to statistics compiled by Rock Valley College professor P.S. Ruckman in 2001. Among presidents who served a maximum of two terms, Woodrow Wilson’s 2,480 pardons were the highest.

5. George Washington, as the first president, issued the first presidential pardons, some of which went to individuals who took part in the Whiskey Rebellion, a revolt against a federal spirit tax.

6. Abraham Lincoln once pardoned a man for attempted bestiality, a crime he committed while drunk. Lincoln felt Arthur O’Bryan’s record was “otherwise reputable.”

7. Clemency is the term used to describe the president’s overall powers to reduce or remove criminal penalties, sometimes called the pardon power. In specific terms, a pardon typically occurs after a sentence is served and restores any rights lost because of the conviction, such as the right to vote or hold office. It does not amount to a declaration of innocence. A commutation removes or reduces a sentence being served but does not restore any lost rights or erase the conviction. Presidents may also issue remissions, which reduce financial penalties if they haven’t already been paid.

8. In the case of Snowden, clemency would not be the only option available to the administration. Attorneys for the DOJ could choose to drop charges, or, perhaps more likely, could work out a plea deal with Snowden that would exchange a guilty plea for a reduced sentence. Snowden has been charged with three felonies that carry up to a 10-year prison sentence each.

9. It is possible to refuse pardons, but not in all cases, according to Supreme Court rulings. In a 1915 court case, a newspaper editor refused to reveal his sources in testimony, based on the right to not incriminate himself, and rejected a pardon from Wilson in exchange for testifying. His right to do so was upheld by the Supreme Court. In a 1927 case, however, the Supreme Court rejected a challenge to a presidential commutation from the recipient himself, who said he had not consented to the sentence reduction. The court held in that case that consent was not required for the president to reduce a death sentence to a life imprisonment sentence.

10. The first White House “pardon” of a Thanksgiving turkey was issued by George H.W. Bush in 1989, though it was a long-standing tradition to spare turkeys. In November, Obama said while pardoning 2013’s bird: “The office of the presidency — the most powerful position in the world — brings with it many awesome and solemn responsibilities. This is not one of them.”

CORRECTION: Due to out-of-date statistics, an earlier version of this story misstated the number of pardons issued by Obama and past presidents.